Review Hearing vs. Variation of an Order for support
The BC Court of Appeal just released a decision called Domirti v. Domirti, 2010 BCCA 472, which considered an appeal by the husband from an Order that he pay indefinite spousal support to his wife. The basis on which the husband made his appeal was the manner in which the judge treated the application at the Supreme Court level; that is, that the judge made a mistake in treating his application as a variance instead of a review. The Court of Appeal agreed with him and reversed the judge’s order.
Previously, the parties have been separated since 1994. The initial child and spousal support order was made in 1996, and varied in 2004. The 2004 Order specified that, anytime after a year had passed, either party could seek a review hearing on the issue of spousal maintenance. The husband sought that review in 2005, and then again in 2009 when it was alleged the youngest child of the parties was no longer a child of the marriage. The husband sought to terminate spousal support at that point.
At the 2009 application the judge indicated she was relying on Section 17 of the Divorce Act, which relates to the variation of support orders. She concluded the husband ought to keep paying indefinite support to the wife in the amount of $1250.00 per month.
On appeal, the Court of Appeal noted that Section 17 of the Divorce Act is irrelevant in the context of review hearings and should not have been relied on by the judge. Instead, at a review hearing, the judge should have conducted a “reconsideration” of entitlement and quantum of support having an eye to the Spousal Support Advisory Guidelines, which the Court of Appeal concluded would have assisted the husband in terms of the duration of support.
This decision clarifies the test that a party must satisfy when bringing an application for a review of support as opposed to the test that must be met on an application to vary support. Procedurally, this distinction is important to note as the legal test is markedly different.
Posted: October 27th, 2010 under Case Analysis, Child Support, Divorce, Procedure.
Tags: appeal, Domirti, Maintenance, review, Support, variation
Don’t Wait Too Long, Part II
There seems to be a spate of “retroactive child maintenance for adult children” cases coming out of the courts. The seemingly immortal Hartshorne case is once more in the forefront, with the parties appearing before the B.C. Court of Appeal and (hopefully) finally resolving all of the issues arising from their ill fated 1989 marriage agreement. This case went up to the Supreme Court of Canada and then was sent back down to the Supreme Court of BC level to determine the issue of child support. Orders were made which were then appealed again by Mr. Hartshorne to the B.C. Court of Appeal. The interesting fact here is that Ms. Hartshorne, after years of having been buffeted from court to court, was trying to collect arrears of child maintenance for her eldest son. She brought that claim on in 2007 when the child was 19 years old. Mr. Hartshorne took the position that “the trial judge did not have jurisdiction to entertain the respondent’s application for retroactive and prospective support for the eldest child because the son was no longer a child of the marriage when the application was made in November 2007.” (at paragraph 67). The court decided, however, that the 2007 application for arrears was simply a resurrection of an earlier action, and because of this stated, ”I am not persuaded the trial judge lacked jurisdiction to hear the application for increased retroactive and prospective child support for the son even though he was over the age of majority at the time because the application was first made by the respondent when the son was still a child of the marriage.” [at paragraph 70] The moral is that you should at least start any application for arrears before your child stops being defined as such by the Act. Unless the Hartshornes appeal.
Posted: July 14th, 2010 under Case Analysis, Child Support.
Tags: arrears, child maintenance, Child Support, Hartshorne
Child Maintenance Claims: Can a Payor Claim Legal Fees as a Tax Deduction?
Interesting case out of the Tax Court this month: in Trignani v. Canada, [2010] T.C.J. No.141, the court determined that a man who had joint custody of his child but who was paying net maintenance to the children’s mother, was entitled to write of those legal expenses he incurred to pursue his child support claims. In this case, the appellant, Mr. Trignani, was pursuing sole custody of his child, which the court determined to be a bona fide claim.
After the parties’ separation July 2000, they entered into an agreement in August 2000 providing for joint custody and for Mr. Trignani to pay maintenance. The parties filed against each other in spring 2001, each claiming sole custody and child maintenance. The Ontario Superior Court of Justice pronounced a consent order in April 2001 that the parties have equal time with the child (the mother’s access to be supervised) and Mr. Trignani was to pay child support. Notwithstanding this order, for the next five years, Mr. Trignani had the child in his care for the majority of the time.
The court order was was varied in 2006 by Minutes of Settlement which provided for joint custody and for Mr. Trignani to pay child maintenance which appears to have been a set off between his and the appellant’s guideline income obligations.
The tax court held that, despite interim agreements reached by the parties between 2001 and 2006, Mr. Trignani at all material times had a live claim for child support and sole custody. The fact that he agreed to a settlement in 2006 which provided that he pay net maintenance to the respondent did not detract from the viability of his claim prior to that point and did not extinguish his right to claim the monies expended on pursuing his child support claim as a tax deduction.
In cases where joint custody is sought or where sole custody is a reasonable consideration, the tax considerations raised in Trignani v. Canada should be considered when deciding whether to claim child maintenance. This case could have far reaching implications. It remains to be seen whether the decision will be appealed and how the decision will be woven by lower courts into the fabric of Canadian family law.
Posted: May 19th, 2010 under Case Analysis, Child Support.
Tags: agreements, child maintenance, Child Support, deduct, deduction, Divorce, minutes of settlement, tax, Trignani, Trignani v. Canada
Financial Statement Assumptions
Some thoughts about Financial Statements: The Form 89 financial statement is divided into major sections – income, expenses and property. Generally, income and property pose few conceptual problems. Parties might disagree with values of assets or with characterization of income, but there little room for assumptions (ie, you would not include a Ferrari in section 2 of Part 3 (Vehicles) premised on “IF I had a Ferrari, THEN I would have a Ferrari”).
The same cannot be said for the expense section of the Form 89, which is rife with assumptions. It is not clear on the face of the document what, exactly, is called for. Is one being asked to say what one’s expenses have been for the past year? What one expects them to be in the coming year? What they will be if one gets what one is proposing that the court order, or what one will be paying if the other party is successful? Does one calculate expenses on the most one believes one should be spending or the least? The answer to all of these questions is, unfortunately, yes.
Because there is so much grey in the Financial Statement, it is important that one clarifies for the court any assumptions and decisions that you make. If one is filling out the document based upon what one expects to pay if one receives what one is seeking, that assumption should be set out in affidavit material and brought to the attention of any judge hearing a related matter. Clarifying affidavits are very helpful for the court and helps them to see exactly what logic lies behind the income and expense calculations you or your counsel may be promoting.
Posted: February 24th, 2010 under Child Support, Procedure, Property Division, Spousal Support.
Tags: Financial Statement, Forms, Procedure, Supreme Court
What to do about non-disclosure
What can you do when the other side won’t give you the documents you need to determine his or her income? Rule 60D of the British Columbia Supreme Court Rules dictates the disclosure that a party must make in a family law proceeding. In the case of Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.)) Mr. Justice Fraser quite appropriately stated that,
“Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done. Non-disclosure also has a tendency to deprive children of proper support.
It is not enough to respond to non-disclosure by an award of costs. Nor is it enough, in a case like this one, to deal only with what is known. Either of these approaches, or both together, may still reward the non-disclosing litigant for his conduct, depending whether his concealment has been successful.”
What then is to be done? Luckily, the courts provide some resources to the party seeking information. They include:
Presumptions Against the Non Disclosing Party: If someone does not disclose assets in accordance with the Rules, the court may presume that there is continuing non-disclosure and the onus will be on the non-disclosing party to satisfy the court that he or she has complied.
Penalties Against the Non-Disclosing Party: If a proper demand has been made for disclosure and it has not been complied with, the court is able to assess up to $5000.00 against the non-disclosing party, to be paid for the benefit of the spouse, child or parent on whose behalf the request for financial information was made.
Dismissal of the Non-Disclosing Party’s Action: If a party does not provide a financial statement, the court under Rule 60D of the rules of court, under Rule 2(5) is able dismiss the offending party’s proceedings or order that the proceeding go ahead as if no appearance had been entered or no defense had been filed.
Contempt: The court can, in certain circumstances, make findings of contempt of court against someone hiding income or assets. This could result in fines against the offending party or even jail time.
Mr. Justice Fraser’s words still ring very true, and it is vital that each party provide full disclosure so that each has full knowledge of the other’s finances.
Posted: November 25th, 2009 under Child Support, Procedure, Property Division, Spousal Support.
Tags: Cunha v. Cunha, disclosure, non-disclosure
